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Article ADA WCAG 2.2 California Unruh Act Website Accessibility

ADA Access Means Actual Access, Not a Text Statement Alone!

By California Veteran Attorney Rich Rydstrom, Esq. for PreferredProfessionals™

Article: ADA Website Access Means Actual Access!
Lawsuits: Some Win, Some Will Lose! What Will You Do?
Assistive Incremental Solutions: No One Should Have a False Sense of Security with Assistive Technology Enhancement Widgets

As I get older, I suffer from impaired vision and hearing. At times, I use an assistive enhancement widget to read text or enlarge text. I find it very useful. It is not intended as a 100% disability access solution. In the future maybe all websites will be 100% accessible with particular assistive tools, but at this time in history, most are not. Thus, assistive incremental solutions are valuable tools.   

The Website Mandates:  At this date, post-Covid, small business owners should know that website access for the disabled is mandatory. Lawsuits have upheld the obligations imposed by the Americans with Disabilities Act (“ADA”) and Web Content Accessibility Guidelines (“WCAG”), concerning Disability Access applied to websites. Other lawsuits have been lost. Some cases will win, some cases will lose. No one should have a false sense of security, either way. But in California, the Unruh Civil Rights Act (“Unruh Act”) may give plaintiffs' lawyers a bigger threat in state court as to damages and jurisdiction. Unruh prohibits every business from engaging in unlawful discrimination against all persons (using websites) within the California jurisdiction.  In addition to federal law, in California, websites must also comply with the Unruh Civil Rights Act. The Unruh Act broadens the scope of website accessibility to “all business establishments of every kind whatsoever”, and allows (3x) actual damages or in the minimum, statutory damages. Some will win and some will lose, but the threat remains.  The reality post-covid, more customers are online. WCAG guidelines are not becoming more limiting but more broadening in their goals (see June 2021 WCAG 2.2).  Is it better to embrace change and do all necessary (within reason and affordability) to make all websites capable of full access for (all) disabilities, or spend more insurance and legal fees in defense, and increase risks of loss to your businesses? Defense lawyers will carve out defenses, on jurisdiction and substance, but plaintiffs' lawyers are also likely to open roads for more and more lawsuits. Maybe the better part of valor is to embrace the multi-billion dollar online disability market and increase sales for businesses and increase access for the disabled.  Don't worry, the lawsuits will continue.       

Access Means Actual Access; Not Notice & Demand:  Most businesses (websites) are not yet compliant and may face (potential) liability for their non-compliance or (perceived) violations. Some businesses have added a Website Accessibility Statement, without actual technical compliance, which usually states in part that they know of the accessibility requirements, and they are committed to compliance, but they require the disabled person who wants access to their online materials, to contact them first. Such a statement is not actual access, it may be an admission of non-compliance or violation(s). This is dangerous and may support a lawsuit or claim against the owner and its’ agents. Access means actual access, not a website diversion requiring notice and demand from the disabled person to gain access. Unlike, the General Data Protection Regulation (“GDPR”), the ADA law requires no notice before a lawsuit is filed against the business for non-compliance.

The Actual Solution:  Many solutions will require actual technical website code changes to afford access and or compatibility to allow the use of third-party programs that afford access for the deaf, blind, or otherwise impaired. Some websites are not configured compatible with screen-readers such as JAWS, NVDA, VoiceOver, and TalkBack (which are access programs for the blind or impaired).  Eventually, maybe, all websites will have inherent coding that affords full access to the disabled, but at this transitional time in our history, most websites require some type of coding or tech fixes, and or digital widgets that add-on various assistive technologies to enhance usability for the disabled. At this time, it may also require a User Input Widget which allows the disabled person to control the choices necessary to enhance access, whether or not it's 100%. If it's assistive and useful it is appropriate to consider or use the same.  Access on many websites may also require fixing website errors including alt text, missing labels, empty links, redundant links, incompatibility with screen reader technology, missing alt text, missing navigation links, missing page titles, etc. Also, websites must be changed to optimize primary elements, flows, actions, accounts, carts, check-out, etc. Many websites may have deep-code issues that must also be addressed to afford working remedies. Although most current widgets may not, and in fact are not intended to (automatically) fix said tech items, however, some do make compatible websites for screen-readers, and add usability including screen text-magnifiers, text-to-speech readers, color and contrast, and assistive incremental enhancements (even if not intended as an official (medical) solution) concerning:

*   Epilepsy (dampens color and removes blinks)

*   Visually Impaired (improves websites visuals)

*   Cognitive Disability (helps to focus on specific content)

*   ADHD Friendly (reduces distractions and improves focus)

*  Blindness (allows using the site with your screen-reader)

*  Dyslexia Friendly.

Such is assistive and valuable. Other assistive elements or adjustments that some widgets afford include:

Mute Sounds, Hide Images, Virtual Keyboard, Reading Guide, Stop Animations, Reading Mask, Highlight Hover, Highlight Focus, Big Black Cursor, Big White Cursor, Navigation Keys, Text to Speech, Content Scaling, Font Sizing, Line Height, Letter Spacing, Text Magnifier, Readable Font, DYSLEXIA Friendly, Highlight Titles, Highlight Links, Left Aligned, Center Aligned, Right Aligned, Dark Contrast, Light Contrast, Monochrome, High Contrast, High Saturation, Low Saturation, Adjust Text Colors, Adjust Title Colors, Adjust Background Colors.

So do not be fooled by website and marketing salespersons selling quick-fix text accessibility statements often requiring the disabled person to request an accommodation to access, without addressing all issues necessary to achieve actual access. Also, no one should have a false sense of security that an assistive widget is a 100% solution, it's not. It takes actual tech and other services to correct the unique problems on various websites. Further, the text statements circulating are often inadequate, and or simply do not take advantage of legal protections that may serve the business owner and support full access at the same time.

Non-Compliance Liability & Damages:  While the ADA does not allow for damages to plaintiffs (only attorney’s fees), the prevailing plaintiff is entitled to 3x actual damages with a minimum of $4,000 in statutory damages… per incident in California under the Unruh Act, and possibly other laws. Consider the California Code, Business and Professions Code - BPC 17200, 17082, for unfair trade practices. Note exposure may include restitution and: "...in addition to injunctive relief, any plaintiff in any such action shall be entitled to recover three times the amount of the actual damages, if any,"  California’s Unruh Civil Rights Act (“Unruh Act”) provides for the recovery of the greater of actual damages or $4,000 in statutory damages for “each particular occasion” of access denial.  (Civil Code 51, 52, 55.56(f).) Defining “incident” or "occasion" upon which damages may to calculable, is not quite certain. Some judges have allowed or will allow each visit or denial of a primary right as a statutory violation, and others have or will limit that. Lawsuits appear to expose small businesses to enhanced risks, especially in California.

Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. 12182(a). Discrimination is defined to include “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.” Id. 12182(b)(2)(A)(iii). The applicable regulations define “auxiliary aids and services” to include “screen reader software,” “accessible electronic and information technology,” or “other effective methods of making visually delivered materials available to individuals who are blind or have low vision.” 28 C.F.R. 36.303(b)(2).

Defenses:  Businesses or entities, are not required to provide auxiliary aids and services if compliance would “fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 42 U.S.C. 12182(b)(2)(A)(iii).  Congress and the United States Supreme Court have yet to officially defined the landscape. So lawyers will continue all defense efforts including but not limited to jurisdiction, due process, nexus, reasonable accommodation, undue burden, etc. 

Closing:  Automated violation reports generally do not catch every violation. Technical issues must also be addressed (i.e.: alt tags, etc.) in addition to adding user input widgets (as appropriate or useful) and compliance statements. Digital widgets that allow USER INPUTS are a great piece of the solution, although not intended as an official (medical) solution. Often technical fixes for various code errors on websites must also be fixed. Eventually, all websites should be accessible to the disabled and impaired. 

For more information contact PreferredProfessionals™ at info@preferredprofessionals.com

https://www.preferredprofessionals.com/ada

Mr. Rydstrom has been quoted or published by:  United States Congress, The Los Angeles Times, USA Today Magazine, MortgageOrb, Mortgage Daily News, Orange County Register, Tax.org, National Business Institute, CMISfocus eMagazine, Pepperdine University (Law, Business Journal), AIR Commercial Real Estate Association, Constructor Magazine for the AGC Association, Society of California Accountants, various Landlords and Real Estate Owners associations and others. Richard is a frequent keynote speaker, moderator, panelist, and CLE instructor for National Business Institute for lawyers, judges, banks, and servicers. Member of Official HAMP Working Groups for U.S. Treasury, AFN, etc., 

rich@rydstromlaw.com; (949) 678-2218

richrydstrom@gmail.com
https://www.preferredprofessionals.com/article-ada-access-means-access


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